Thursday, June 4, 2009

Congressman Nathan Deal (R-Georgia) has recently introduced in the House the Birthright Citizenship Act of 2009. The stated purpose of the bill is to amend section 301 of the Immigration and Nationality Act to clarify those classes of individuals born in the United States who are nationals and citizens of the United States at birth. The bill is included on the OpenCongress.org web site at http://www.opencongress.org/bill/111-h1868/show. The summary of the bill at the site states the following:

“OpenCongress Summary: This bill would eliminate birthright citizenship for children born to undocumented immigrants in the U.S. Current U.S. law automatically recognizes any person born on American soil as natural born citizen. Under the bill, only children with at least one parent who is a U.S. citizen, a legal permanent resident, or an undocumented immigrant serving in the military would be considered citizens.”

This summary contains a very serious error. It states that “Current U.S. law automatically recognizes any person born on American soil as natural born citizen” (emphasis supplied). This is not a correct statement of the law.

Any legal statement referring to citizenship is contained in the Fourteenth Amendment and Congressional Acts. The former refers only to “citizens of the United States and of the State wherein they reside. . .” and the latter only to “citizen.” There is absolutely no mention in the amendment or statutes of a “natural born Citizen.” There also is no Supreme Court decision that says that an Article II “natural born Citizen” is the same as an Article I, II, III, and IV and Fourteenth Amendment “Citizen.”

There is a critical difference between a “natural born Citizen” and a “citizen.” The Constitution itself does not tell us what a “natural born Citizen” is. Hence, we simply cannot just apply the term to a given situation. Rather, we have to construe from the Constitution itself and other extrinsic sources such as historical events, constitutional debates, congressional debates, case law, statutes, and any other relevant information what the Framers meant by the term. The Constitution uses both “natural born Citizen” and “Citizen of the United States.” It uses “Citizen of the United States” in Article II’s grandfather clause, giving such a citizen the right to be President, but only if born prior to the adoption of the Constitution. It even says that a President must be a “natural born Citizen” (implying from birth) and a Senator or Representative need only be a “Citizen of the United States” for 9 and 7 years, respectively (a fortiori showing that he/she could be a naturalized citizen). Basic rules of constitutional construction tell that the terms are not interchangeable. These rules also tell us that in construing the Constitution, special meaning must be given to the words “natural born.” We must give meaning to the Framer’s use of the words “natural born.”’

The Constitution does not state that Congress has the power to determine and define what a “natural born Citizen” is. It is important to note that the Framers did not write in Article II “natural born Citizen of the United States,” but rather just wrote “natural born Citizen.” Why did they omit “of the United States” which they appended to the word “Citizen” when using that term? When the Framers included into Article II “natural born Citizen,” they used the definition of the term as established by the law of nations which the heavily relied upon in drafting the Constitution. The law of nations, which followed the jus sanguinis tradition, was based on natural law that had been accepted by the international community since time immemorial. Hence, a “natural born Citizen” did not need any artificial territorial boundary as part of its definition. Of course, it was understood that such a citizen would belong to the civil society or country called the United States of America. The definition from the law of nations became part of American common law and that definition was that a “natural born citizen” was one that was born in the country to a mother and father who were also citizens of the country. Our U.S. Supreme Court confirmed this definition when it stated: “At common law, with the nomenclature of which the framers of the constitution were familiar, it was never doubted that all children born in a country, of parents who were its citizens, became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners.” Minor v. Happersett, 21 Wall. 162 (1874). It is clear from the language used that the Supreme Court borrowed its concept of what a “natural born Citizen was from Vattel. See Vattel, The Law of Nations Sec. 212-33. It is also important to note that the Supreme Court said that the Framers were “familiar” with this principle.

The Framers did not give Congress any power to change this natural law definition, for to do so would have been contrary to natural law and would have given Congress the power to decide who can be President which the Framers did not trust it to have. Rather, the Framers gave Congress in Article I, Section 8 the Constitutional power to make uniform the naturalization laws which means it could determine and define what a “Citizen” is as that term is used in Article I, II, III, and IV. Congress has used this power throughout American history and used it to define who are U.S. nationals and citizens at birth. Other than the 1790 Naturalization Act (which "natural born" language was repealed by the 1795 Naturalization Act-see my post on this blog concerning these two early Acts), Congress never defined a "natural born Citizen" nor can it. Just to mention some of the many more existing examples, in 1866, Congress passed the Act of 1866, Sect. 1992 US Revised, which was designed to allow blacks to be citizens. The law provided: “All persons born in the United States and not subject to any foreign power . . . are declared to be citizens of the United States.” In 1924, Congress also passed a law making all Indians United States citizens. Current citizenship and nationality Congressional statutes may be found at 8 U.S.C. Sec. 1401 and 1409. By making such individuals citizens at birth, Congress simply obviates their need to be naturalized. But Congress’s definitions are driven by the political influences and environment of the day and, as can be seen from the many changes Congress has made to who can be a U.S. “citizen,” can change direction like the wind. Indeed, Congress can naturalize and de-naturalize individuals if perceived to be warranted because of political and military interests as some countries have done in history. http://en.wikipedia.org/wiki/Naturalized_citizen. Hence, these definitions do not and cannot change natural law which is the basis for the meaning “natural born Citizen.” One cannot be made a "natural born Citizen" through legislation. Only a constitutional amendment would suffice to specifically change the meaning of "natural born Citizen" or generally change the requirements to be President of the United States.

H.R. 1868's purpose is to stop the "anchor baby" syndrome. By doing so, it is restricting the open license of current U.S. policy on what is U.S. birthright citizenship. Because of the continuing wrong interpretation given to the U.S. Supreme decision of Court Wong Kim Ark, now even if both parents are illegal aliens and with some rare exceptions (children of ambassadors or of invading military soldiers), their children born on U.S. soil are U.S. citizens (jus soli). The bill, by telling us under what condition the child born on U.S. soil will be considered as being "subject to the jurisdiction of the United States," would require at least one of the parents to be (1) a citizen or national of the U.S.; (2) a Legal Permanent Resident (LPR) who resides in the U.S.; or (3) an alien performing active service in the U.S. armed forces. By adding this additional element (modified jus sanguinis), the bill clarifies that birthright citizenship is not only based on being born on U.S. soil but also on the nationality/military status of at least one of the parents. Through such a law, Congress would also be telling us that “subject to the jurisdiction of the United States” does mean more than the incorrect and ludicrous notion that it means that the child simply needs to be born on U.S. soil. By not requiring both parents to be citizens of the U.S., the bill does not require the United States to have complete and absolute jurisdiction over the child in order for that child to be a “Citizen.” Being completely and absolutely subject to that jurisdiction would make the child an Article II “natural born Citizen,” for such a child has at birth sole and exclusive allegiance to the United States by enjoying unity of citizenship at birth. See my post on this blog on unity of citizenship. Not being completely and absolutely subject to the jurisdiction of the United States (i.e. born with dual or more citizenship) makes the child born on U.S soil only a “Citizen” under the Fourteenth Amendment as it has since been interpreted by our courts.

Hence, the bill is correct in calling any child born under its reach only a “citizen” but as I have explained the bill’s summary is not in calling such a child a “natural born Citizen.” The bill does not require that both parents be United States citizens at the time of the child's birth on U.S. soil which is the correct definition of a "natural born citizen" under the law of nations, which the Founding Fathers relied upon in drafting the constitution and the “natural born Citizen” clause of Article II. Hence, the bill is not declaring these children Article II "natural born Citizens." See my article on the meaning of Article II "natural born citizenship."

In short, under the bill any baby born on U.S. soil who does not have at least one qualifying parent, will not automatically be a U.S. citizen at the time of birth. Hence, the bill would put a stop to those mothers who sneak across the border into the U.S. or enter the U.S. with a visitor visa or some other non-immigrant visa and have a child here. After all, if the woman is pregnant, what is she doing traveling internationally and entering a foreign country (the U.S.A) at a time when she could be giving birth to a child? Are those mothers who enter the U.S. with a visitor or other non-immigrant visa telling the immigration authorities that they are entering the U.S. during a late stage of their pregnancy? Who is paying for that woman's pre- and post-partum health care provided in U.S. hospitals? The bill will also prevent those alien mothers who are already in the U.S. illegally for some time and who have the baby with a non-U.S citizen or non-resident who is also not in any U.S. military service from giving birth to a child in the U.S. and having that child be declared a U.S citizen. Also, those children who are born on U.S. soil to foreign parents acquire under the citizenship laws of their parent’s home country dual or triple allegiances by inheriting their parent’s nationality or citizenship through descent. To some of these children as they grow older, such dual allegiance might mean something to them politically or militarily. Making that class of children a U.S. citizen and giving them the right to vote could someday put in jeopardy U.S. political sovereignty and Constitutional values. If the American people are happy with these choices, then so be it. But they at least have to be informed of these possible consequences so their decision is knowingly, voluntarily, and intelligently made. Additionally, under the current system of birthright citizenship, we hear how the U.S. is cold and vicious because it separates families by removing (formerly called deporting) the illegal parents back to their home countries while allowing their U.S. citizen children to stay in the U.S. with other legal natural or foster families. At least, if one of the parents is here legally and married to the other foreign parent, that legal parent can potentially petition for the foreign parent to become a legal permanent resident and eventually a U.S. citizen and thereby family unity will be achieved.

Thus, the bill summary should be reworded as it is not correct to say the bill is addressing "natural born citizenship." It is addressing statutory "citizenship at birth" which is an entirely different legal term of art. The Congress, when debating this bill, should for posterity's sake be made to state its position in the public record on the question of whether it believes there is a difference between a 14th Amendment born “citizen of the United States” and an Article II "natural born Citizen." This issue is critical to the question of who is eligible to be President under Article II. While Congress's debate and opinion will not be binding on any court of law, at least their opinion and rationale will provide some guidance for the courts and the public.

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comments:

I beleive that this bill is long over due. I would also agree that by reading the summary the Congressman is either misreading the 14th Amendment or he had given unconstitutional powers to Congress. Perhaps some good will come from this. This bill is not taking away citizenship from those already here, it is only clarifying what the phrase "under the jurisdiction" means.

The courts have consistently misread the 14th Amendment and some of their rulings have went beyond the words found within the Amendment itself. The amendent does leave the enforcement of it to Congress so hopefully the courts will respect it. No where in the text of the bill does it contain the words natural born citizen. It will be interesting to see this debated and the positions of the various representatives will be known.

The definition that you have consistently put forth in your agreements is the correct definition. You further quite succinctly explain that a natural born citizen is the product of nature and not law. Therefor this bill is also not taking away natural born citizenship status away from anyone who was born under the previous 140 years of the 14th amendment for no law can give that. This is what we should hope is discussed during the debate of the bill.

Mr Apuzzo, William Lolli here--I have a question: If Congress has not power to define "natural born" of what power does Congress have to enforce Article 2 Section 1?

In our current example, how can Congress be sued or held accountable for a failure to do a duty [validation of the Art2 Sec1 Nat Born status of BHO, for example] for which it has no Constitutional definition?

Bravo Mario.I saw this bill and freaked out thinking that they were trying to bend the definition of "natural born citizen" to that it neatly backdoors Obama into a now-eligible POTUS position. That cannot and should not happen. Eligibility for POTUS should not be subject to the whims of any block of politicians.

It's getting tiresome that the makers of law in our country can so often misuse the term "natural born citizen". How do we go about asking them to amend the description of the bill, as it really has nothing whatsoever to do with the term "natural born citizen"?

We can wait to see what Mario says, but I would suggest you write or email the bill sponsors and co-sponsors and/or the webmaster contact for that Open Congress page, if there is one. And of course you can also write to your own Congressman about it and put your 2 cents in. And also do send along a copy of Mario's writings on the matter. ;-)

“Definition- Acknowledging the right of birthright citizenship established by section 1 of the 14th amendment to the Constitution, a person born in the United States shall be considered ‘subject to the jurisdiction’ of the United States for purposes of subsection…”

The above section of the bill is also in error. The 14th amendment did not establish birthright citizenship. In fact, according to Dr. John C. Eastman, birthright citizenship began to be assumed to be the case sometime in the 1960’s. He says he has challenged many people how it came to be that the 14th amendment was interpreted as granting birthright citizenship to anyone born on U.S. soil. No one he asked could answer that question.

The discussion begins around the 4 minute mark and the specific point is made beginning at the 5:20 mark.

With their large congressional staffs it seems to me that Congressmen could ask one of them to do a little research about the bill they are writing. But of course that means that they have to realize that there might be an issue in the first place. I expect more from our elected leaders.

Obama had a perfect opportunity to make it perfectly clear his birthplace and Nationality but instead, spoke of his father's birthplace and religion:

"As the Holy Quran tells us, Be conscious of God and speak always the truth. That is what I will try to do - to speak the truth as best I can,..."Part of this conviction is rooted in my own experience. I am a Christian, but my father came from a Kenyan family that includes generations of Muslims."

mtngoat61,I will heed your advice and let my rep and senators know what I think, but to be honest with you I've lately been convinced by my emails on A2 S1 C5 of the Constitution that not only do they not know how to read but they don't know how to think either. It's really rather sad. When as a collective unit will we all see that it's past time to vote all the bums out? We need fresh thinkers in there that aren't concerned about political expediency.

14A did not grant automatic citizenship to anyone born in the US. The 14 A says born AND SUBJECT to the juridiction of the US. If a child is born to a British national father, then he is born subject to the jurisdiction of Britain. If the British (non US Citizen) father traveled with the Minor child to, say Spain, the child of a British citizen would be subject to the jurisdiction of Britain, not the US. In Elk v. Wilkins (1885) Justice Gray ruled that "jurisdiction" meant "subject to the sole jurisdiction of the US and no other foreign power", as did the Civil Rights Act of 1866 (which was codified into the 14A). Justice Gray certainly had an axe to grind in legitimizing his benefactor (Chester Arthur) 14 years later in going diametrically opposed to his own ruling in Elk v. Wilkins by allowing birthright citizenship to Wong Kim Ark. He knew that muddying the "Jurisdictional Clause" would also muddy the waters of the definition of Natural Born Citizen. However, Constitutional terms must be defined according to their original intent. How could you argue that they founders, in their desire to insulate the POTUS from foreign influence, could have allowed the children of foreignors (non citizens) to be NBCs just because they were born on US soil? IT's Preposterous!!!! LAUGHABLE!!! Then of course you could point to Marbury v. Madison, which said that every constitutional clause is deemed to have an effect, and if an argument makes that effect moot, then it is inadmissable. If a Born citizen ( by an interpretation of the 14A) is deemed to be a NBC, then that argument is inadmissable because it makes A2S1C5 moot. There is no such thing as "The cuurent definition if NBC". The definition is still the same as the original intent, influenced by Natural Law as put forth in Law of Nations. There has been NO Amendment that changed the meaning on NBC. As for the people that say that NBC is not defined in the Constitution, there are alot of terms not defined. Where is the definition of "Bill of Attainder" for instance. Or they did not say "ex post facto law, which is..." or "Law of Nations, which is". The document was written in the common language of the day, and was understood. Barack H. Obama was born to a NON US CITIZEN British Subject. As such he could never be considered Natural Born. He is the child of 2 worlds, and a NBC can only be the child of one.

We need a new amendment that is clear and concise so it can not be distorted in the future. 1.to be an American Citizen a baby would have to be born of a natural or naturalized American Citizen in the United States or any other location. I would even add a child born to parents who are in the process of becoming American citizens that have a valid a Green Card. All child born to parents that do not meet these requirements would not be an American citizen even though they were born within the boarders of the United States or its territories. They would have the citizenship of their parents country not US Citizenship.

2 Illegally being in the United States would be no longer a civil offense but a Federal felony. Subject to immediately deportation without appeal without conviction or after trial a felony with prison time. An illegal captured on a second instance of illegal entry into the united States would be subject to felony trial only.

All illegals will be held for any hearing and not released back into society.

3. Makes it illegal for states, counties and cities to create "Sanctuary Cities" for illegals.

Makes make elected officials guilty of a Federal felony and force the automatic cutoff of all federal funds to those cites, counties and states who violate the new amendment.

4. An illegal who is voluntarily deported will be eligible of legal entry to the United States 5 years after their deportation. They will not be penalized for their initial illegal episode. They will be pardoned upon legal immigration into the United States.

5. Illegals convicted of a criminal felony. They would be deported immediately upon completion of their prison sentences, or immediately upon conviction (at the discretion of the judge) and banded for life.

This will eliminate anchor babies. and the endless catch and release.

This approach fosters the Re-establishment of the rule of law. It offers an incentive for illegals to follow the law.

Once established as the new law of the land. We can consider a Presidential amnesty for the 12 million who are here. Secure in the fact that the law will followed and enforced consistently throughout the United States and its Territories.

I wanted to pop in here and say I feel the OpenCongress summary of the legislation is indeed accurate. The Supreme Court established that a child born on American soil to foreign parents is at birth a citizen of the United States (169 U.S. 649 -- United States v. Wong Kim Ark).

In addition, the 14th amendment provides for only two classifications of citizenship: those born and those naturalized. Until there is court precedent that explicitly sets a third classification of "natural born citizens," our reading is that all citizens who are not naturalized are natural born.

But let me answer in the mean time. You are mistaken in your presentation of the issue. Court precedence is not needed to create the class of citizenship of "natural born citizen". It was created when the legal term of art was put into the Constitution, specifically in Article II as to the qualifications of who can serve as President and Commander in Chief. Your summary of a new proposed federal statute that addresses ordintary citizenship under Title 8 section 1401 and the 14th amendment is incorrect. There is no mention in the bill HR 1868 about Article II of the Constitution, nor is their mention of Natural Born Citizenship in the bill. Thus you should NOT be using the term "natural born citizen" which in your summary, which is a special class of citizens established per the Constitution, not any court precedence. It happens to be the largest group of citizens in our nation and any nation in existence for any length of time, i.e., those born in the country to parents who are both citizens of the country. By mixing terms you are confusing people and/or you are confused. You need to consult with constitutional lawyers as to the meaning of the term Natural Born Citizen in Article II to Constitutional standards. Your understanding of the statutory laws addressing the legal term of art "citizen at birth" as being synominous with "natural born citizen" are totally wrong. One is granted by manmade laws and the latter is granted by nature, natural law, and the Law of Nations due to the facts at the birth of the child.

See this chart for the 5 types of citizenship listed in the U.S. Constitution. These were put there by the founders and framers and later amenders ... NOT by court precedence. Study the Constitution some more and the intent of the founders and framers. See this chart:

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